Prince George's County v. Chillum-Adelphi Volunteer Fire Department, Inc.

Smith, J., delivered the opinion of the Court. As every resident of this State who lives outside of the urban areas of the State knows, volunteer firemen perform an important and necessary service. Without them property in such areas would be unprotected from the ravages of fire and in extinguishing fires people would be reduced to use of the archaic methods of a bygone era. ³⁷⁶ The population of Prince George’s County has grown from 60,095 in 1930 to 661,192 in 1970. The “growing pains” resulting from that increase in population have been reflected in more and larger volunteer fire companies and controversy between those fire companies and the County government relative to funds.

This case and its predecessor, Chillum-Adelphi v. Pr. George’s Co., 269 Md. 486 , 307 A. 2d 481 (1973), result from those controversies. By Chapter 628 of the Acts of 1963, § 32-17 of the Code of Public Local Laws of Prince George’s County was enacted declaring “[a]ll existing nonprofit incorporated volunteer fire companies .. . operating in Prince George’s County .. . to be an instrumentality of Prince George’s County and/or the municipality in which they operate ....” 1 Disputes relative to the interpretation of this law produced suits for declaratory relief on behalf of a number of the volunteer fire companies. Prince George’s County (the County) was named defendant.

When the County Charter (the Charter) became effective on February 8, 1971, certain provisions in it further fanned the flames of controversy as the result of which yet other questions were brought to the attention of the court. In all, four suits were filed with all of the volunteer fire companies of Prince George’s County involved as parties. In Chillum-Adelphi we invoked Maryland Rule 871 a and remanded the case for a determination of the constitutional issues presented. On the remand the trial court declared § 32-17 “to be null and void, being contrary to the Constitutions of Maryland and the United States of America . . . .” In all other respects it “ratified and incorporated by reference” in its decree “the declaratory opinions and orders of th[at] Court filed in th[o]se cases on April 14, 1972 and November 3, 1972 . . . .” It directed the payment of a substantial fee to counsel for the fire companies.

The County and the fire companies appealed. We were advised at argument of this appeal that the ³⁷⁷ County and the fire companies reached an agreement by which the County no longer claims the assets of the fire companies and the matter of counsel fees has been resolved to the satisfaction of the parties so that those two issues are no longer before us. The parties and the trial judge (McCullough, J.) formulated the issues to be decided by the trial court, all of which were numbered. In the earlier appeal we had before us issues 1, 3, 8, 9, 13, 19, and 22.

The parties apparently found no fault with the decision of the trial judge on the remaining issues. The briefs in this appeal, although not designating the issues as precisely as they were designated in the former appeal, stated that the same points were before us in addition to the issue pertaining to attorney’s fees. Issue 1 concerned the claim of the County that under the provisions of § 32-17 it was vested with title to all of the assets of the volunteer fire companies. We shall set forth the remaining issues as they are discussed.

Issues 3, 9,13, and 22 Issues 3, 9, 13, and 22 are interrelated. As framed by the parties, with the answers stated in the court’s decree, they are as follows: “ISSUE III: DOES NOT THE CHARTER’S SCHEDULE OF LEGISLATION IN PARAGRAPH 14 THEREOF CREATE IN PRINCE GEORGE’S COUNTY TWO FIRE DEPARTMENTS, i.e., A COUNTY FIRE DEPARTMENT AND THE VOLUNTEER FIRE SERVICE EMBODIED BY THE VARIOUS INDEPENDENT PRIVATE CORPORATIONS?” “Issue Number III: The Charter of Prince George’s County does not create a second firefighting system in Prince George’s County.” (Emphasis added.) “ISSUE IX: ARE THE PLAINTIFFS IN THIS CASE, i.e., THE INDEPENDENT VOLUNTEER FIRE DEPARTMENTS OF PRINCE GEORGE’S COUNTY, STILL INDEPENDENT CORPORA ³⁷⁸ TIONS SOLELY RESPONSIBLE FOR THEIR OWN DAY-TO-DAY OPERATION OF THEIR RESPECTIVE DEPARTMENTS: ARE THEY, IN ADDITION, RESPONSIBLE FOR THE SUPERVISION AND CONTROL OF SAID PERSONNEL, AND DO THEY HAVE FIRE GROUND CONTROL: OR, DOES THE COUNTY HAVE THE RIGHT TO PROMULGATE AND ENFORCE RULES AND REGULATIONS BINDING UPON THE UNPAID VOLUNTEER PERSONNEL OF THE PLAINTIFF FIRE COMPANIES, AND DOES THE COUNTY HAVE THE RIGHT TO DIRECT, CONTROL AND SUPERVISE THE PLAINTIFF FIRE COMPANIES’ UNPAID VOLUNTEER PERSONNEL, OFFICER OR OTHERWISE, IN THE PERFORMANCE OF THEIR DUTIES AS VOLUNTEER FIREMEN, TO SUCH A DEGREE THAT THE OPERATION OF THE PLAINTIFF FIRE DEPARTMENTS, THEIR PERSONNEL, AND FIRE GROUND CONTROL ARE SUBJECT TO THE DIRECTION AND CONTROL OF PRINCE GEORGE’S COUNTY AND/OR ITS FIRE CHIEF?” “Issue Number IX: The independent volunteer fire departments are subject to the direction and control of Prince George’s County and/or its fire chief.” “ISSUE XIII: ARE THE PLAINTIFF FIRE COMPANIES AGENCIES OF THE COUNTY AS DEFINED BY SECTION 1017 (M) OF THE PRINCE GEORGE’S COUNTY CHARTER?” “Issue Number XIII: The Plaintiff fire companies are agencies of the County government.” “ISSUE XXII: IS THE COUNTY EMPOWERED TO INSPECT, AUDIT, AND COPY ALL THE ACCOUNTS, RECORDS AND BOOKS OF THE PLAINTIFF FIRE COMPANIES?” ³⁷⁹ “ISSUE XXII: Prince George’s County is empowered to inspect, audit and copy all of the accounts, records and books of the plaintiff fire companies having to do with the receipt and disbursement of County budgeted funds only.” These issues might well be reframed: a. Does Prince George’s County have the power to control the activities of the volunteer fire companies, and, if so, to what extent? b. Does Prince George’s County have the right to audit the books of the volunteer fire companies, and, if so, to what extent?

In formulating answers to questions such as those posed here it must be remembered that even in declaratory judgment actions authorized by what is now Code (1974) §§ 3-401 to 3-415 of the Courts and Judicial Proceedings Article (formerly Code (1957) Art. 31A) courts will not answer “purely theoretical questions or questions that may never arise.” Liss v. Goodman, 224 Md. 173, 177 , 167 A. 2d 123 (1961). See also Pr. George’s Co. v. Bd. of Trustees, 269 Md. 9, 12 , 304 A. 2d 228 (1973). a. Control The current controversy revolves around the rights and obligations of the County and the fire companies as the result of the adoption of the Charter.

In the schedule of legislation adopted with the Charter § 14 provided for “a Fire Department headed by a Fire Chief.” The department so provided was to “be responsible for fire prevention, fire suppression, fire and rescue communications, research and training activities, and coordination of the volunteer fire companies.” The Charter further provided for a fire commission “composed of nine members elected by the volunteer fire companies of Prince George’s County,” which commission was to “review the financial needs and requests for public funds of each volunteer fire company” and to “formulate annually one capital budget, one capital ³⁸⁰ improvement program, and one current expense budget for all volunteer fire companies with respect to the expenditure of public funds, and [to] submit said budgets and program, together with appropriate justification, to the County Executive in accordance with the provisions of [the] Charter.” One thing upon which the parties here can agree is that disputes arose as to control, as the fire companies put it in their brief, “both operational, budgetary and administrative.” Section 32-18 of the Prince George’s County Code, as enacted by Chapter 437 of the Acts of 1965, authorized a fire tax of 4 cents upon each $100 of assessed valuation to be levied by the county commissioners (except for the area of the County within the limits of the City of Takoma Park), the proceeds of which were “to be expended by such fire companies for the purpose of providing that a minimum of two (2) paid firemen in each fire station [should] be employed on a full-time basis at salaries to be determined by the Board of County Commissioners.” Chapter 745 of the Acts of 1966 repealed § 32-18 and enacted a new subsection in its stead. It provided for a fire tax in the amount of 10 cents upon each $100 to be appropriated “for the employment of at least two additional full-time paid firemen in each fire station validly in existence in Prince George’s County, the acquisition or leasing of land or facilities for new fire house sites and training facilities, and to supplement financial needs of fire companies based on budget review.” The section as then enacted further provided for these “[f]ull-time paid firemen [to] be under the direct supervision and control of the individual fire company chief during working hours.” Peripherally, there are conflicting contentions here as to whether § 32-18 remains viable after the adoption of the Charter, a contention which we need not answer for the purposes of this case. The County contends that the volunteer fire companies “are instrumentalities of the County such that the fire chief of [the] County . .. has the power and authority to direct and control the day to day activities and internal operations ³⁸¹ of the volunteer fire companies.” This argument is based on the fact that “the basic duty of fire suppression necessary to protect the health and welfare of the public” is a part of the police power vested in the County. Some of the opposition from the fire companies comes from their dislike of the budgetary procedures of the County.

Accordingly, some of the fire companies, as it is put in their brief, “in an effort to remove themselves from what they contended were arbitrary and capricious budgetary and other controls imposed by the [County], notified the [County] of their intention not to submit to these budgetary procedures, but instead to demand compensation, by way of contract or on principles of quantum meruit, for the services they might be called upon by the [County] to render subsequent to July 1st, 1972.” 2 The County claims: “To permit a volunteer company to escape County governmental control by refusing to accept public funds is to permit a private corporation to perform governmental functions contrary to the directives of the governmental authority itself. There is nothing in the County Charter which conditions control on the acceptance of funds by volunteer companies. Simple reflection upon the proposition that control is contingent only upon financing with the determination to accept or reject that financing at private discretion should demonstrate its untenability.” It goes without saying that in the absence of some provision of law to the contrary, constitutional or statutory, the County may impose such conditions as to it appears proper upon those who wish to receive County funds including a direction as to the manner of expenditure of those funds. In this instance no provision of law to the contrary has been cited or found.

The issues here go deeper, however. The contentions of the County carried to their logical extreme would seem to be that because protection ³⁸² from fires is a part of the police power its control of the volunteer fire companies extends down to how often nozzles owned by a fire company are to be shined and whether a fire company’s own funds may be spent for a repast for those returning from a fire, while the contentions of the fire companies carried to their logical extreme would go so far as to say that the Prince George’s County Fire Chief, or “super chief,” as some have dubbed him, has no control whatever over them at the scene of a fire, no matter how extensive the conflagration may be. We see the answer as lying in what might be called the middle ground between the respective contentions. It is beyond dispute that the police power which has been delegated to charter Counties by Code (1957, 1973 Repl.

Vol.) Art. 25A, § 5 (S), Mont. Citizens League v. Greenhalgh, 253 Md. 151, 161, 162 , 252 A. 2d 242 (1969), includes the power to regulate private business to the extent necessary to protect the public health, safety, morals, and welfare. Accordingly, the County and the Prince George’s County Fire Chief, who has a responsibility under § 14 of the schedule of legislation for “fire prevention” and “fire suppression,” have the power to reasonably regulate these volunteer fire companies to protect the public health, safety, morals, or welfare. Whether or not a given regulation is within the scope of this power is not before the Court in this case.

We can only set forth the standard which will control the resolution of any future dispute as to a given regulation. We have been cited to no authority under which the County could prescribe budgetary procedure or policy to a volunteer fire company which does not accept County funds. However, if a given volunteer fire company elects to accept County funds, then it follows that the County may impose conditions on the granting and use of those funds, e.g., that the company’s books would be kept in a certain manner, that the funds granted would be only expended for certain specified purposes, and that to assure the County of this fact the company’s books would be subject to audit by persons designated for that purpose by the County. Indeed, the County might well specify that no part of the funds would be ³⁸³ expended for new equipment without advance approval of the County, might say what type of equipment could be purchased with funds from the County, and might provide for the manner of maintaining equipment purchased with County funds.

In other words, the County may impose reasonable regulations relative to the funds which come from it. On the other hand, if a volunteer fire company does not accept County funds, it is only subject to such regulations of the County as may be imposed under the police power. Where two constructions of statutory language are possible courts will prefer the construction which will result in the legality and the effectiveness of the statutory provision being construed, rather than to adopt a construction which would make such provision illegal and nugatory. See, e.g., District Land v. Wash.

S. S. C., 266 Md. 301, 312 , 292